If someone were to pose the question “Who would look after you, if you were no longer capable of looking after yourself?” you would more than likely answer that it would be your spouse, your partner, your parents, your sibling, your child, whoever your next of kin may be, it would of course be them. After having answered this question, with what seems to be the most logical answer, you might not give it much more thought.
However, in reality, the idea that your family has an automatic right to make decisions regarding your welfare and to look after your financial affairs if you are no longer capable, is one of the most widely held misconceptions in relation to the law on incapacity. Quite the contrary, if you become incapable due to an accident, illness or age related condition, your family have no right to step in and do for you what you can no longer do for yourself. This is where having a Power of Attorney is critical. A Power of Attorney is a legal document which allows you to appoint ‘attorneys’ and give them the authority to make important decisions relating to your personal welfare and financial affairs. Once signed, your Power of Attorney is then registered with the Office of the Public Guardian.
I recently attended a seminar at the University of Dundee Law School, hosted by Amanda Kerr from the Office of the Public Guardian. Whilst almost the entire lecture hall nodded along when we were asked if we had heard of Powers of Attorney, less than a handful of people actually had one in place. Perhaps this was due to the high level of young and healthy law students who would not consider that they would need one for a very long time. This brings us to another common misconception that people have in relation to Powers of Attorney, that they don’t need one unless a trigger, such as a diagnosis of an illness occurs. In fact, a Power of Attorney can be made at anytime, so long as you are capable. In some of the more unfortunate cases, the diagnosis of an illness may be too late and the alternative remedies can be stressful, expensive and time consuming, often involving court orders. As Private Client solicitors know all too well, it is not advisable that you risk waiting for a crisis situation to occur, before putting a Power of Attorney in place. Rather, you should take a proactive approach and equip your family with the most useful tool for such a situation arising. Indeed our Private Client Department advises that all of our clients have a Power of Attorney in place, regardless of their age or health.
The popularity of Powers of Attorney is certainly increasing, with the Office of the Public Guardian estimating that they register around 250 new Powers of Attorney per day, with an impressive 50,000 being registered per year. This is a welcomed statistic and one, which we can only hope will increase as awareness of this very important legal tool gains awareness amongst the general public.
 Office of the Public Guardian Seminar by Amanda Kerr, 26 October 2015, University of Dundee Law School.
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